PLF returns to CA Supreme Court in showdown over local coastal permits
Pacific Legal Foundation is back at the California Supreme Court to represent veteran builder Tim Shea in a high-stakes property rights case that could finally clarify how California’s coastal permitting system works. On Dec. 3, PLF attorney Jeremy Talcott delivered oral arguments challenging the California Coastal Commission’s attempt to override San Luis Obispo County’s approval of Shea’s building of four homes.
The dispute traces back more than 20 years. In 2003, Shea purchased eight residential lots in the coastal community of Los Osos with the intention to build and sell a home on each one. The County approved his plan in two stages—four homes now, four homes later—under the condition that he install public infrastructure for all eight up front.
“It was expensive, but I had it in writing and banked on the idea that the government’s word would stand,” Shea said.
He built and sold the first four homes without a hitch, giving families a foothold in one of the country’s most housing-constrained states. In 2017, his permits for the remaining homes were approved by the County under the Local Coastal Program, a County ordinance regulating development in the coastal zone that, once certified by the CCC, becomes the controlling land use law.
Then came the twist: The CCC appealed the County’s approval—to itself (the CCC is the only agency in the nation where members of the Commission can appeal another government’s decision to themselves).
The CCC also claimed authority based on the homes supposedly being in an “Environmentally Sensitive Habitat Area.” But the County LCP designated such areas only using official maps—and Shea’s properties were not within any of those designations. In essence, the CCC attempted to cherry-pick a single drawing within the LCP—not an official map—that did include Shea’s property and claimed that it was sufficient to “designate” the property as ESHA.
Tim Shea is trying to build four homes in a residential neighborhood in Los Osos, California.
The CCC’s wrongful assertion of jurisdiction put Shea into years of regulatory purgatory: the County had approved his permits, but until the CCC’s claim that it had the final word was resolved, Shea could do nothing.
PLF attorney Jeremy Talcott argued before the Justices that the CCC is not allowed to treat LCPs as a bundle of unrelated provisions to be used only when convenient, but as a planning document that should be interpreted holistically and given its most reasonable interpretation.
When the CCC’s counsel suggested Shea should simply reapply for his permits under newly amended LCP language that might approve his plans, sidestepping the central issue of LCP authority, Talcott countered that starting over is no solution—not when the last process already cost substantial amounts of money and over a decade of delay.
Getting his permit now—still by no means a guarantee—would be “cold comfort for someone who has spent 15 years trying to get permits to the point of development,” Talcott argued.
“The bottom line is if the Court avoids dealing with the challenge to the CCC’s overly expansive view of its own jurisdiction, it will be allowing the CCC to yet again avoid review and continue its longstanding strategy of bleeding out property owners by the Death by a Thousand Days approach,” said Robert Thomas, director of PLF’s property rights litigation.
The question of whether the Court must cede its power to enforce the law to the CCC also came under sharp examination.
Counsel for the CCC argued that the agency is the expert supervisor of all coastal permitting—the coastal czar—such that the courts should afford the CCC’s claim to expanded jurisdiction a high degree of deference. Talcott countered that CCC-certified LCPs are empowered specifically to address local permitting issues and that the CCC may override local decisions only in the limited circumstances the Coastal Act permits—not by rewriting any local rule it finds inconvenient.
The Justices seemed to recognize the inequity in the CCC’s push to send Shea back to square one, signaling concern not just for legal boundaries but for basic fairness.
Tim Shea.
When the Court granted review, it seemed to be signaling a bench increasingly focused on reining in the Commission, widely described as the most out-of-control government agency in the country. After review was granted, however, the CCC leaned on a familiar tactic: it argued that if Shea would only reapply one more time, the dispute might evaporate without the Court ever having to address the broader questions of jurisdiction and fairness.
“If we decide that the Commission wrongfully exercised its right to appeal, they should have had a valid permit and been allowed to go forward,” Justice Carol Corrigan said, “now you’re saying, ‘Well, maybe that’s true, but we have a new law now, so they can just start again.’ There just seems to be something Catch-22 and Kafkaesque about an opinion that authorizes that result.”
What’s at stake is more than Shea’s livelihood. If the CCC gets away with this, it can erase nearly any locally approved coastal permit, leaving towns like Los Osos with empty lots instead of families, and diminishing community trust in local authority.
Preserving California’s coast, protecting sensitive habitats and supporting thriving coastal communities are shared goals. PLF simply argues that stewardship must remain rooted in law and sound evidence.
“This case is about whether property owners can rely on the rules as they are written, or whether agencies have unchecked power to change them case by case,” Talcott explained.
A decision is expected within 90 days.
